Robert L. Allum - Page 12

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          the extent of damages not in excess of the amount paid for                  
          medical care described in section 213(d)(1)(A) and (B)                      
          attributable to emotional distress.  See sec. 104(a) (flush                 
          language).                                                                  
               When damages are received pursuant to a settlement                     
          agreement, the nature of the claim that was the actual basis for            
          settlement, and not the validity of the claim, controls whether             
          such amount is excludable under section 104(a)(2).  United States           
          v. Burke, supra at 237; see also Bagley v. Commissioner, 105 T.C.           
          396, 406 (1995) (“[T]he critical question is, in lieu of what was           
          the settlement amount paid?”), affd. 121 F.3d 393 (8th Cir.                 
          1997).  The determination of the nature of the claim is a factual           
          inquiry and is generally made by reference to the settlement                
          agreement.  Robinson v. Commissioner, 102 T.C. 116, 126 (1994),             
          affd. in part and revd. in part on another issue 70 F.3d 34 (5th            
          Cir. 1995).  An express allocation in the settlement agreement of           
          a portion of the proceeds to tort or tortlike claims is generally           
          binding for tax purposes if the agreement was entered into by the           
          parties in an adversarial relationship at arm’s length and in               
          good faith.  Bagley v. Commissioner, supra at 406; Robinson v.              
          Commissioner, supra at 126-127.  If the settlement agreement                
          lacks express language stating what the settlement amount was               
          paid to settle, we look to the intent of the payor, based on all            
          the facts and circumstances of the case, including the complaint            






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